lease was effected by a person describing himself in the instru ment as agent of the owners, but who had no interest whatever in the premises leased, and did not execute the instrument, and to whom no promise was made as the lessor, it was held that he could not maintain an action for the rent or for possession of the land forfeited by non-payment of the rent. He could not sue as the "person with whom, or in whose name, a contract is made for the benefit of another," because no promise at all was made to him, and he was not a trustee of an express trust." The court said: "One who contracts merely as the agent of another, and has no personal interest in the contract, is not the trustee of an express trust within the meaning of the statute, and cannot, under the code, sue upon such contract in his own name." Of course this last expression must be taken in connection with the facts of the case; namely, that no promise was made to the plaintiff individually.1

66

§ 174. The nature of an express trust, and the classes of persons embraced within the statutory phrases in question, were determined, upon great consideration by the New York Court of Appeals, in the leading case of Considerant v. Brisbane.2 "The term trustee of an express trust' had acquired a technical and statutory meaning. Express trusts, at least after the time of the adoption of the [New York] Revised Statutes, were defined to be trusts created by the direct and positive acts of the parties, by some writing, or deed, or will; and the Revised Statutes had abolished all express trusts except those therein enumerated

an express trust, within the meaning of the statute. He is not a trustee of an express trust, because no such trust appears from the assignment, and none is shown to exist between himself and his copartners by virtue of any other instrument." He then adds the remark quoted in the text.

1 Rawlings v. Fuller, 31 Ind. 255. Fuller sued on the following agreement: "Articles of agreement between B. F. Fuller and M. Rawlings : I, B. F. Fuller, agent for Sarah Floyd's heirs' property, do agree to rent [certain premises] to M. Rawlings for [a certain rent], and on the failure on the part of the said M. Rawlings to pay said rent on the first day of every month in advance, then it is hereby agreed between B. F. Fuller, landlord,

and M. Rawlings, tenant, that the above contract is at an end, and B. F. Fuller shall be entitled to take possession of said property." The complaint alleged rent unpaid, and demanded possession and the amount of rent due. The court said: "It will be observed that the complaint does not assert any claim of title in Fuller. The contract is not signed by Fuller, and does not, in express terms, contain a promise to pay rent to him. It describes him as agent of the property, and expressly states that it belongs to the heirs of S. Floyd. We do not think the facts constitute Fuller a trustee of an express trust," adding the language quoted in the text.

2 Considerant v. Brisbane, 22 N. Y. 389, 395, per Wright J.

!

6

which related to land. If this section (§ 113) of the code was to be restricted and limited to those enumerated express trusts, the practical inconvenience arising from making the beneficial interest the sole test of the right to sue, and which that section (§ 113) was intended to obviate, would continue to exist in a large class of formal and informal trusts. Accordingly, in 1851, the section was amended by adding the provision that a trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.' It is to be observed that there is no attempt to define the meaning of the term 'trustee of an express trust' in its general sense; but the statutory declaration is that these words shall be construed to include a person,' &c. The counsel for the respondent insists that the sole intention of the legislature in amending the section was to remove a doubt that had been expressed whether a factor or other agent, who had at common law a right of action on a contract made for the benefit of his principal by reason of his legal interest in the contract, was by the code deprived of that right. But no such limited intention can be inferred from the words of the statute. Indeed, it is only by a liberal construction of the section that the case of a contract by a factor (an individual contract) can be brought within it at all. It is intended manifestly to embrace, not only formal trusts declared by deed inter partes, but all cases in which a person acting in behalf of a third party enters into a written express contract with another, either in his individual name, without description, or in his own name expressly, in trust for, or on behalf of, or for the benefit of, another, by whatever form of expression such trust may be declared. It includes not only a person with whom, but one in whose name, a contract is made for the benefit of another." These definitions. and descriptions of the term fully sustain the conclusions reached in the preceding paragraph as to the legal meaning of the phrase "trustee of an express trust." It is abundantly settled that an agent cannot sue in his own name to enforce an implied liability to his principal; if by any possibility he should be a trustee under such circumstances, he would not be the trustee of an express trust.1

1 Palmer v. Fort Plain, &c. Plank R. Co., 11 N. Y. 376, 390, per Selden J. "There is

no covenant or agreement running to these officers in terms. They, as agents of the

§ 175. Having thus attempted to arrive at a general definition of the term, I shall proceed to consider the cases which are embraced within it, and shall take at first those in which a "person with whom, or in whose name, a contract is made for the benefit of another" has sued in his own name. It is fully established by numerous decisions that when a contract is entered into expressly with an agent in his own name, the promise being made directly to him, although it is known that he is acting for a principal, and even although the principal and his beneficial interest in the agreement are fully disclosed and stipulated for in the very instrument itself, the agent in such case is described by the language of the statute, and may maintain an action upon the contract in his own name without joining the person thus beneficially interested. The following are particular instances, or examples

town, convey the right to use the highway upon a certain condition. It is virtually the act of the town through them. If an implied covenant arises upon the instrument, it is a covenant with the town, and must be enforced by, and in the name of, the town." Ruckman v. Pitcher, 20 N. Y. 9. The agent may, in many cases, sue upon express contracts made with himself by name. . . But this implied duty or assumpsit arises only in favor of those to whom the money in fact belonged, and, therefore, cannot be enforced in the name of another person to whom the obligation is not due."

1 Considerant v. Brisbane, 22 N. Y. 389, reversing s. c. 2 Bosw. 471. The plaintiff was agent for a foreign corporation which did business under the name of "Bureau, Guillon, Goden, & Co." The defendant applied to the plaintiff for stock in said corporation, and authorized the plaintiff to subscribe in his name for such stock to the amount of $10,000, and, in payment of the subscription, gave plaintiff two notes, each in the following form: New York, March 1, 1855. On the first day of July, 1855, I promise to pay V. Considerant, executive agent of the company Bureau, Guillon, Goden & Co. the sum of $5,000, for which I am to receive stock of said company known as premium stock, to the amount of $5,000, value received. A. Brisbane." The plaintiff alleged that he had entered de

fendant's name as a subscriber; averred a tender of the stock and a refusal to accept the same; and sued in his own name on the notes. The Court of Appeals held that he could maintain the action. The judgment of Wright J. is an exhaustive discussion of the whole subject. Denio J. dissented, but not from the general reasoning as to the true interpretation of the code. His dissent was based entirely upon a construction of the notes sued upon. He insisted that the promise in these notes was, in fact, made to the company, and not to the agent; and so the case did not fall within the terms of the statutory provision. Rowland v. Phalen, 1 Bosw. 43. Plaintiff sued on a contract in which he was described as "acting on behalf of I. S. and others," and stipulations were made by and with him. Cheltenham Fire-brick Co. v. Cook, 44 Mo. 29. The defendants executed a bond, wherein they bound themselves "to pay the said Cheltenham Fire-brick Co. for their own use and for the use of Evans and Howard, respectively," certain moneys under certain conditions. The company sued, alleging moneys due to it and also to Evans and Howard. Wright v. Tinsley, 30 Mo. 389. An agreement was entered into between Wright, the plaintiff, for the benefit of Mrs. Dawson, his daughter, and Tinsley, the defendant. "Wright obviously comes literally within this definition, and is the proper party plain

of particular classes of cases, in which an agent has been permitted to sue, or may always sue, in his own name, because the contract is made with him directly, although on behalf of a known principal: on a sealed lease between the plaintiff, as agent for the owner, of the first part, and the defendant as the lessee; on a sealed contract between plaintiff and defendant, the plaintiff describing himself as agent for his sisters, and stipulating that they should act in defendant's theatre at specified wages, which the latter covenanted to pay, the action being brought for such wages; 2 where the plaintiff, being the holder of the legal title to certain land, which he held, however, merely for the benefit of a married woman, was induced, by false representations, to execute a mortgage thereon, supposing it to be for her benefit and at her request, but in fact without any consideration paid to himself or to her, brought an action in his own name to restrain a foreclosure of the mortgage; in an action on a policy of marine insurance "for the account of whom it may concern," and in case of loss the amount insured to be paid to the plaintiff or order; where a promise was made to the administrator of an estate, and he afterwards resigned, and another was appointed in his place, it being held that he was the proper party

tiff." Weaver v. Trustees of the Wabash, &c. Canal Co., 28 Ind. 112; Rice v. Savery, 22 Iowa, 470, in which it was held that either the agent or the beneficiary might sue. See supra, § 140. Winters r. Rush, 34 Cal. 136. Action by Winters on the following note: "Twelve months after date I promise to pay W. M. Winters, or any authorized agent of the Pacific Methodist College, the sum of $1,150, for the endowment of said college." The court held the action to be properly brought in the name of the plaintiff, and approved of Considerant v. Brisbane. Ord v. McKee, 5 Cal. 515. Notes were given by defendant to "James L. Ord, agent of W. H. McKee, for the price of land owned by McKee, and sold to the defendant; and a mortgage to secure the notes was given back directly to McKee. The action is by Ord to foreclose the mortgage. Held, that Ord could sue on the notes; and, as the mortgage is a mere security for the payment of the notes and an incident of the debt, he could maintain

the action to foreclose. Scantlin v. Allison, 12 Kans. 85, 88. A note was, by consent of all the persons interested, given to one who held it in trust for others. An action by this payee alone, without joining the beneficiaries, was sustained. And where A. was jointly interested with others in a claim, and made a contract in his own name with B., by which the latter agreed to collect the same, and account to him for the proceeds, he was permitted to maintain an action against B. without joining the others as coplaintiffs. Noe v. Christie, 51 N. Y. 270, 274. In Hubbell v. Medbury, 53 N. Y. 98, the provision of the code was held to be permissive only, and not to prohibit an action by the beneficiary, even without the trustee.

1 Morgan v. Reid, 7 Abb. Pr. 215. 2 Nelson v. Nixon, 13 Abb. Pr. 104. 3 Brown v. Cherry, 38 How. Pr. 352. 4 Walsh v. Wash. Mar. Ins. Co., 3 Robt. 202; Greenfield v. Mass. Mut. Ins. Co., 47 N. Y. 430.

to sue; where a grantee in a deed of land was simply acting as agent for another, and the purchase price was paid with that other's money, the grantee is the proper party to sue for the breach of a covenant which was broken immediately upon the execution of the deed, e. g., a covenant against incumbrances;2 a guest at an inn who had property of another in his possession, which was lost, was held to be the proper party to sue for its value; an auctioneer may sue for the price of goods sold by him, whether he have any interest in the price or not, and a sheriff, for the price of property sold by him on execution;5 the master of a ship or other vessel may maintain an action for freight, or on any contract concerning the ship, entered into on behalf of the owners, or for the taking and carrying away, conversion of, or injury to, the cargo."

3

§ 176. Various kinds of bonds and undertakings generally required by statute, and given to some designated obligee, although showing on the face that they are designed to protect, secure, or indemnify other persons, are also contracts made "with, or in the name of, one person for the benefit of another;" and although the party immediately interested may in general sue in his own name, yet the obligee or person to whom the promise is made may always, unless forbidden by statute, maintain the action, and in some States is the only one who is permitted to do so. Among these are bonds in great variety given to the "people or to the "State," conditioned upon the faithful discharge of their duties by public, local, or municipal officers, actions on which, except when otherwise directed by statute, may be brought by the people or the State; bonds running to the people or to the State, conditioned upon the faithful discharge of duties by various private or semi-private trustees, or by persons appointed in judicial proceedings and the like, such as those given by administrators, executors, or receivers ; 10 those given by the trustees of

1 Harney v. Dutcher, 15 Mo. 89.

2 Hall v. Plaine, 14 Ohio St. 417, 423. 3 Kellogg v. Sweeney, 1 Lans 397. 4 Minturn v. Main, 7 N. Y. 220, 224; Bogart v. O'Regan, 1 E. D. Smith, 590.

5 Armstrong v. Vroman, 11 Minn. 220; McKee v. Lineberger, 69 N. C. 217, 239.

6 Kennedy v. Eilau, 17 Abb. Pr. 73. 7 Houghton v. Lynch, 13 Minn. 85. 9 See supra, §§ 139, 141.

9 Hunter v. Commissioners of, &c., 10 Ohio St. 515 (county treasurer's bond running to the State); State v. Moore, 19 Mo. 369 (sheriff's bond); Meier r. Lester, 21 Mo. 112 (constable's bond); Shelby Co. v. Simmonds, 33 Iowa, 345 (county treasurer's bond running to the county).

10 People v. Laws, 3 Abb. Pr. 450; Annett v. Kerr, 28 How. Pr. 324; People